Counseling and Warnings
The Union accepts that an employer may legitimately interview and counsel an employee to assist them in their work, where their performance or conduct has been unsatisfactory based upon reasonable and lawful criteria which are equally applied to all employees. Performance management (or counselling) is a positive action designed to improve a worker’s performance or conduct and to ensure that they fully understand and adhere to the employer’s reasonable and lawful policies and procedures.
The Structure of a Counselling:
A counselling session is a two-way discussion, not an interrogation session. An employee should receive reasonable notice of the meeting, be advised of the opportunity to bring a representative (if a union member) and receive a general indication of the nature of the matters to be raised at the meeting. Employers should not use these meetings to ambush workers.
An employee can terminate or adjourn a counselling session at any time. Any employer which refuses to allow a worker to leave may be committing false imprisonment. An employee may also adjourn or terminate a session where the employer has raised an unexpected issue for which no notice was provided.
Possible Outcomes of a Counselling:
a) Educate and Inform: It may be that an employee has not been properly informed of employer’s policies and procedures. It may also be that the employee was unaware of a change to that policy or procedure. In all such cases, the employee may be given instructions on the nature and effect of the policy and procedure as it relates to the issue(s) raised in the counselling meeting.
b) Re-train: There may be instances where the employee’s understanding of the policy or procedure is inconsistent with the business’ interpretation. In such instances it will be appropriate for the employer to provide re-training in line with their interpretation, to the extent that the policy and the interpretation are reasonable, lawful and consistently applied.
A warning is different from a counselling, although they are commonly used synonymously. Subject to sufficient proof, employees may be warned for alleged breaches of the employer’s policy and procedures to the extent that such policies and procedures are reasonable, lawful and consistently applied.
If an employer does use warnings they need to make sure they:
- provide the worker with sufficient detail to respond to the concern;
- provide the worker with an opportunity to respond;
- clearly explain the reason for the warning;
- record in writing all the details;
- set clear expectations about what needs to be done differently, including a review and re-training as appropriate; and
- ensure that the warning is fair and reasonable in the circumstances.
The severity, level of repetition, form and appropriateness of a warning will depend on the surrounding circumstances.
An employee is entitled to be warned if their performance or conduct is unsatisfactory before their employment is terminated, except where the allegation is for serious misconduct. (It should also be noted that employees can be terminated without receiving a prior warning if the employee is still within their ‘minimum employment period’).
If the allegation does relate to serious misconduct, which is defined by the Fair Work Regulations, then the onus is on the employer to prove that misconduct on the balance of probabilities.
Where the employer moves to terminate the employment of an employee, it is very important for the employee to attain (for the purposes of inquiry and investigation) copies of all documents shown and/or provided by the employer, during any counselling or warning sessions.
Keep copies of everything!
What are my rights regarding meetings?
The right of union members to representation
It is illegal for an employer to take adverse action against a union member who seeks ‘to be represented by an industrial association’ (i.e. their Union) under the Fair Work Act 2009.
Adequate notice of the meeting should be provided so members can arrange for a Union Delegate or Organiser to be present to assist them and represent their interests in accordance with the law. Furthermore, the meeting should be scheduled at a time when the Union representative is able to attend.
Non-members do not have the right to representation, only to be offered a ‘support person’. Union Delegates and Organisers will not be available as a ‘support person’ to assist non-members.
The right to remain silent:
It is generally unlawful for an employer to force an employee to answer questions. An employee may choose which, if any, questions to answer. In any meeting where dismissal is a possible outcome, employees should consider their responses carefully, take the opportunity for an adjournment to take advice if required and answer truthfully if the employee decides to answer the question. Employees should also appreciate that a refusal or failure to answer a fair and relevant question may result in the employer making its decision without the benefit of any answer. In any unfair dismissal matter, the Commission is required to consider ‘whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person’. The employer is then entitled to make a decision based upon all relevant information before it.
You do have the right to refuse to answer the same question which is needlessly repeated. Employers are not entitled to treat disciplinary meetings as cross examination. If your employer has already asked a question and you have fully answered the question to your best ability then that is sufficient. It is not acceptable for the employer to approach the meeting as an interrogation.
The right to not be forced to enter or be detained in an enclosed space:
An employee may adjourn the counselling or disciplinary meeting and leave at any time, should the employee so desire. Importantly, an employee cannot be detained in an enclosed space unless they are under arrest. If you are locked in a room or prevented from leaving against your express wishes and you are not under arrest this constitutes false imprisonment.
Subject to the circumstances, of course, if you decide to leave and/or refuse to participate in a meeting regarding your work performance or conduct, in the absence of your participation or presence, the employer may be entitled to take such reasonable action as is required in respect of your employment, in accordance with the relevant industrial laws.
The right not to sign anything:
An employee cannot be compelled to sign any documents including counselling, warning, performance improvement plans or disciplinary forms, howsoever they have been described.
The Union recommends to members not to sign any document unless
- They have received industrial advice;
- They agree with the entire contents including all facts detailed in the document and the outcome(s);
- They receive a copy; and
- They understand the full consequences of signing the document.
Where an employee feels obliged to sign a document but disagree with the facts, the outcome or both, they should write, “I have read the document, but I do not agree with its contents”.
An employee should never sign a document just to say that they were present.
If in doubt, do not sign.
What to do if you are asked to attend a meeting?
- Contact the Union as soon as you suspect there might be a problem with your employment or disciplinary action may be taken against you. The Union will not take any action without your authorisation.
- If you are called to a meeting with your employer, you can request to be provided with an agenda to assist with preparation. If you are provided with detailed information/allegations prior to the meeting, your Union representative can assist you to prepare for the meeting. Make sure you seek our Union’s industrial advice before submitting any written materials.
- As a Union member we encourage you to take a Union representative with you to the meeting. A Union representative includes an SDA delegate or SDA Organiser.
If you have any questions around your rights in meetings or any other employment related matter, please contact the SDA for advice and assistance on (02) 4961 4694 or email [email protected]au